Djokovic Wins Case To Stay In Australia, But It May Not Be Over

Novak Djokovic has won his case to be freed from detention and is allowed to stay in Australia, at least for the moment. However, his case was decided on the basis of lack of procedural fairness, leaving unsettled the question of whether a recent positive test for COVID-19 should be considered equivalent to a vaccination certificate. Image Credit: Christopher Johnson (CC-BY-SA 2.0)

Novak Djokovic is used to dominating on the tennis court, but has now had success in another kind of court, with an Australian judge ordering his release from detention. Just as a tournament isn’t settled in a single round, however, this issue could have a long way to run. In theory, the case concerns just one man, in very unusual circumstances, in an individual country. Nevertheless, the final outcome could have implications for efforts worldwide to impose vaccine mandates.

For those coming in late, Novak Djokovic is the world’s number one ranked male tennis player. He’s also vocally anti-vaccine and applied for a medical exemption to bypass Australia’s requirement that visitors to the country must be double vaccinated against COVID-19 so he could play at the Australian Open. Most medical exemptions don’t apply to anyone capable of playing social tennis, let alone winning a professional tournament, but Djokovic is arguing his positive test last month means he qualifies.

Djokovic was approved by two panels, leading him to believe he could legally enter Australia, but the decision attracted immense outrage from a public seeing this as special treatment. The Australian Government subsequently announced the panels in question did not have the right to approve his arrival, canceled his visa, and locked him in a hotel used to incarcerate asylum seekers under sometimes hellish conditions. Djokovic appealed, and today Judge Anthony Kelly quashed the visa cancelation and ordered him released, with the government ordered to pay legal costs.

Whether this turns out to be a major blow to vaccine mandates, or a one-off rebuke to incompetent handling of the case by Australia’s Border Force, probably won’t be known for some time.

On its narrowest interpretation, Kelly has simply ruled Border Force officials needed to give Djokovic more time to present his case. Djokovic's lawyer had pointed to communication his client received prior to traveling to Australia he argued would make a reasonable person believe he’d received permission to come. "The point I'm somewhat agitated about is, what more could this man have done?" Kelly asked

It’s, therefore, possible that when the dust settles the only change the case will make is that those enforcing vaccine mandates need to clearly spell out what qualifies as a medical exemption. Specifically, the mess might have been avoided if a clearer response was given as to whether “natural” immunity, gained through contracting the virus recently, substitutes for double vaccination.

Arguably, however, this confusion exists in the first place because there is scientific disagreement as to whether getting COVID-19 is as protective against future infection as vaccination. We know COVID-19 is not like smallpox, a disease that can never be caught twice, illustrated by Djokovic having caught COVID-19 during his self-organized superspreader event, and then again 18 months later.  

But Djokovic's case may not be over yet. Kelly admitted he has no power to prevent the Minister for Immigration and Citizenship from canceling Djokovic’s visa on his personal authority, something considered a definite possibility.

That, to use an unusually appropriate analogy, puts the ball very much back in the Australian Government’s court. It can accept its officers screwed up their initial communication and subsequently failed to provide procedural justice in denying Djokovic the time he needed. Doing so will represent a major embarrassment months before an election, particularly for a party that has won several elections based on their perceived superiority on border security.

Alternatively, the relevant ministers could choose to keep the issue alive, in which case a variety of issues may become pertinent. These could include scientific questions about whether recent infection should be considered to replace vaccination, as Djokovic argued and the panels apparently agreed. Some other nations do indeed accept this. If so, further debates may arise, such as whether all variants should count for such purposes.

Questions such as why Djokovic was speaking in public and attending events in the days after he claims to have tested positive have also gained attention.

By closing its external borders early, and limiting movement between states, Australia went through 2020 and most of 2021 with very low COVID-19 rates, with some states spared almost entirely.

The price was paid, however, by many citizens who found themselves unable to get home. Others couldn’t see loved ones on the other side of state lines, sometimes leading to tragedy. Consequently, the issue of letting people in who might be carrying COVID-19 has become an exceptionally sensitive one.

Perhaps the pressure of so much attention led to Australia’s Border Force’s mishandling of the process. However, some past bungles suggest this might not be a one-off.

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